Affirmed in Part, Reversed in Part, and Remanded, and Memorandum
Majority Opinion and Memorandum Concurring Opinion filed October 29,
2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00879-CV
PIONEER ENERGY SERVICES CORPORATION, Appellant
V.
BURLINGTON INSURANCE COMPANY AS SUBROGREE OF PREMIER
COIL SOLUTIONS, INC., Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2016-12120
MEMORANDUM CONCURRING OPINION
I concur in the judgment because (1) Premier was sued for negligence,
(2) Premier properly pled a cause of action against Pioneer for breach of contract
and contribution concerning indemnity for the negligence claim, (3) Pioneer
presented (as opposed to waived) its defense concerning negligence to the trial
court, and (4) Pioneer’s non-waiver does not affect the disposition herein. I would
therefore affirm the trial court’s grant of summary judgment with respect to
Premier’s claim concerning indemnity for negligence because the record reveals
such claims were expressly presented, defended, and covered by the indemnity
agreement.
Premier sued Pioneer seeking indemnity of a negligence claim and the
majority’s opinion recites the contents of the indemnity clause at issue. In the
lawsuit giving rise to this secondary suit for breach of contract, Premier was sued
for “gross negligence”; the petition included allegations concerning duty, breach,
causation, and damages. The parties filed competing motions for summary
judgment; Pioneer’s motion was also contained within its response to Premier’s
motion and requested a traditional summary judgment on all of Plaintiff’s claims
for damages. The only claims for damages in the current lawsuit were for breach
of contract and contribution relating to the initial lawsuit against Premier for
negligence and strict liability. Pioneer (in its traditional motion for summary
judgment) argued that the indemnity provision was ambiguous as to the underlying
causes of action for negligence and strict liability. Therefore, Pioneer did not
waive this defensive issue as a matter of law. See, e.g., Stanley Russell Coleman v.
Revak, No. 01-07-00438-CV, 2008 WL 2466276, at *2 (Tex. App.—Houston [1st
Dist.] June 19, 2008, no pet.) (mem. op.) (“merely identifying a theory of liability
or defense” in a summary judgment motion sufficient to preserve issue); see also
Deutsche Bank Nat’l Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 332-33
(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (Frost, C.J., dissenting) (with
respect to grounds for summary judgment, “a concise identification of a liability
theory or affirmative defense is sufficient to raise that theory of defense”).
Premier’s petition satisfies notice pleading standards. The record reveals
Pioneer did not file any special exceptions and nothing about Premier’s claim is
2
ambiguous. Without some ambiguity, there is no reason to analyze whether the
indemnity clause covers “gross negligence” because it is not a cause of action
recognized by Texas courts. See Nowzaradan v. Ryans, 347 S.W.3d 734, 739
(Tex. App.—Houston [14th Dist.] 2011, no pet.) (“[N]egligence and gross
negligence are not separable causes of action but are inextricably intertwined.”)
(quoting Ford Motor Co. v. Miles, 967 S.W.2d 377, 390 (Tex. 1998) (Gonzalez, J.,
concurring)).
This case is (in relevant part) about negligence and an indemnity agreement
that concerns negligence. “Gross negligence” is a standard which entitles plaintiffs
to recover exemplary damages under the Damages Act. See generally Burk
Royalty Co. v. Walls, 616 S.W.2d 911, 917 (Tex. 1981) (tracking the development
of gross negligence from the 1876 Texas Constitution); see also Horizon Health
Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 866 (Tex. 2017); Mobil Oil
Corp. v. Ellender, 968 S.W.2d 917, 921-25 (Tex. 1998) (analyzing punitive
damages via gross negligence); and Tex. Civ. Prac. & Rem. Code Ann.
§ 41.001(11) (defining “gross negligence”).
I disagree with the majority’s conclusion that Pioneer needed to invoke
“gross negligence” in order to properly present or preserve its defense because
“gross negligence” is a standard of liability (not a separate cause of action).
However, the outcome is unaffected because Premier would still prevail.
Therefore, I concur in the majority’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan (Spain, J., majority).
3